AI Art Generators Spark Multiple Copyright Lawsuits; The Hollywood Reporter, January 17, 2023

 Winston Cho, The Hollywood Reporter; AI Art Generators Spark Multiple Copyright Lawsuits

"Whether AI programs, built on models that analyze the patterns of copyrighted works, violate the intellectual property rights of artists is up in the air. Engineers build AI art generators by feeding algorithms large databases of images downloaded from the internet without licenses. The artists’ suit asks whether the AI firms infringed on the copyrights of artists by using copyrighted works to train AI tools and when consumers used the art generators to create new works. It also asks whether the conduct is protected under fair use, which allows for use of protected works without permission as long as they are transformative."

Proposed Draft Of Supreme Court Opinion On Andy Warhol's Painting Of Prince; Forbes, January 7, 2023

 Schuyler Moore, Forbes; Proposed Draft Of Supreme Court Opinion On Andy Warhol's Painting Of Prince

"For the second time in two years, the Supreme Court has taken up the challenge of adding clarity to the "fair use" defense to a copyright infringement claim. The prior attempt was in Google vs. OracleORCL +1.6%, which left the defense more muddled than ever by permitting extensive verbatim copying on specious grounds. In the latest foray, the Supreme Court is going to decide in a pending case whether Andy Warhol's colorized painting of a photograph of Prince is protected by the fair use defense against a copyright infringement claim brought by the photographer.

The decision in this case will have far-ranging critical implications for Hollywood, and it will be cited for decades to come. If history be our guide, it is almost certain that the Supreme Court will add yet more mud to a muddy issue. In order to avoid that result, and with the aim of impartiality, I humbly offer the Supreme Court drafts of the two opposing opinions it could issue for this case:"

The global appeal of "Take Me Home, Country Roads"; CBS Sunday Morning, December 26, 2021

CBS Sunday Morning; The global appeal of "Take Me Home, Country Roads"

""Take Me Home, Country Roads," a song about a longing for home (co-written by a songwriter who had never even been in West Virginia), has been embraced by the Mountain State in a big way, and has since been appropriated by singers around the world looking for their very own "place I belong." Correspondent Conor Knighton looks into the genesis and global impact of John Denver's first big hit; and with country star Brad Paisley about the special pull the song has for him."

Andy Warhol Foundation Asks Supreme Court to Review Prince Pop Art Dispute; The Hollywood Reporter, December 9, 2021

Ashley Cullins, The Hollywood Reporter; Andy Warhol Foundation Asks Supreme Court to Review Prince Pop Art Dispute

"The Warhol Foundation argues that allowing the split to stand would create a “sea-change” in copyright law and lead to “inconsistent results and forum shopping” if the 2nd and 9th Circuits are using different frameworks to analyze fair use.

It argues the decision also chills artistic expression because creating new works as cultural commentary — like Warhol and the larger pop art movement did — could now amount to copyright infringement if the image is deemed too “recognizeable” to be transformative."

Top Intellectual Property Issues to Watch in 2022; Bloomberg Law, December 3, 2021

Dorothy R. Auth, Howard Wizenfeld, David (Dash) Cole , Bloomberg Law; Top Intellectual Property Issues to Watch in 2022

"Evolving U.S. intellectual property law continues to impact many industries, including the technology and pharmaceutical sectors, with 2022 promising to be no different.

The U.S. Supreme Court will have a significant role to play in the coming year. On the patent front, it will decide whether to review the U.S. Court of Appeals for the Federal Circuit’s decision in American Axle, a case which could potentially expand patent- ineligible subject matter to include certain conventional methods of using mechanical devices

A second case, now seeking Supreme Court review, Amgen v. Sanofi could have implications in the biotech and pharma space with regard to the ability to protect chemical genuses.

Copyright law is also evolving, with U.S. appellate courts trying to apply the Supreme Court’s Google v. Oracle decision addressing fair use in more traditional copyright settings."

‘Star Trek,’ Dr. Seuss Mashup Dispute Ends After 5-Year Legal Journey; The Hollywood Reporter, October 5, 2021

Eriq Gardner, The Hollywood Reporter ; ‘Star Trek,’ Dr. Seuss Mashup Dispute Ends After 5-Year Legal Journey

"On Tuesday, that final frontier known as intellectual property was charted when, after five long years in court, a legally adventurous dispute over a Star Trek-Dr. Seuss mashup concluded in a settlement. As a result of a deal, the crowdfunded “Oh, the Places You’ll Boldly Go!” will be going away."

Google v. Oracle: Fair Use and the Seventh Amendment; JD Supra, September 15, 2020

 Dorsey & Whitney LLP, JD Supra; Google v. Oracle: Fair Use and the Seventh Amendment

"On August 7, 2020, Google and Oracle submitted their final written arguments to the Supreme Court regarding their decade-long copyright battle over the source code animating the Android platform. Now, we focus on the second question presented to the Supreme Court: whether Google’s copying of Oracle’s Java source code is a non-infringing fair use.

Recall that in December 2019 we introduced “the copyright lawsuit of the decade.” In March 2020, we covered the first of two questions presented to the Supreme Court: whether Java software interfaces are protected by copyright. Before we could address the second question presented, however, the Supreme Court delayed oral arguments on the matter to the October 2020 term due to the COVID-19 pandemic. The Supreme Court also requested that Google and Oracle submit supplemental briefs addressing the standard of review relating to the fair use defense—i.e., whether the Federal Circuit gave the proper deference to the jury’s finding of fair use when it reviewed it de novo and reversed it...

Conclusion

The Supreme Court is finally set to resolve important questions regarding the scope of copyright protection and the fair use doctrine that could have huge ramifications for the software industry … or is it? As detailed above, the Supreme Court may lean on the standard of review applied by the Federal Circuit to delay further comment on whether Google’s copying constituted fair use. We will update you again after oral argument, which is scheduled for October 7, 2020."

Censoring Jon Hamm's Penis Doesn't Violate Copyright Law, Federal Judge Rules; Gizmodo, September 11, 2020

Matt Novak, Gizmodo; Censoring Jon Hamm's Penis Doesn't Violate Copyright Law, Federal Judge Rules

"The lesson for all you meme-makers out there? Make sure your images are transformative and put a black box over those bulging packages."

Fair game: Does the fair use doctrine apply to Andy Warhol’s pop art?; ABA Journal, January 9, 2020

Eldon L. Ham, ABA Journal; Fair game: Does the fair use doctrine apply to Andy Warhol’s pop art?

"The acclaimed “Andy Warhol—From A to B and Back Again” exhibit of more than 400 of Andy Warhol’s works has been making the rounds from New York to San Francisco to Chicago. Even casual observers have a sense of Warhol’s groundbreaking pop-art style. Yet there is one surprising legal question of fair use and transformative value that begs consideration: Just what is a “Warhol”?"

The Marines don’t want you to see what happens when propaganda stops and combat begins; The Washngton Post, March 15, 2019

Alex Horton, The Washington Post; The Marines don’t want you to see what happens when propaganda stops and combat begins

"Lagoze found himself in a murky gray area of free speech and fair-use government products. U.S. citizens can already go on Pentagon-operated sites and download free military photos and video.Their tax dollars fund it, and federal government creations are not protected by copyright.

So could Lagoze take the moments he filmed with government resources and make something new?

He worked with the Knight First Amendment Institute at Columbia University to push back against the military’s claims of impropriety. The Marine Corps relented this month."

Viral Is Still Copyrighted, Even to Learn Where Trump Is; Lexology, January 18, 2019

Finnegan, Henderson, Farabow, Garrett & Dunner LLP - Joseph Myles and Margaret A. Esquenet, Lexology; Viral Is Still Copyrighted, Even to Learn Where Trump Is

"While attending his friend’s wedding at the Trump National Golf Club in New Jersey in June 2017, Jonathan Otto took a photograph of a certain wedding crasher: the president himself...

The case continues towards trial, but with a number of the most important issues now decided in Otto’s favor."

X-Men: 'Dark Phoenix' Gets an Animated Trailer; Comicbook.com, October 7, 2018

Jamie Lovett, Comicbook.com; X-Men: 'Dark Phoenix' Gets an Animated Trailer

"In September, 20th Century Fox released the first trailer for Dark Phoenix. Now a fan has taken that trailer and recreated it using footage from X-Men: The Animated Series.

The trailer, which can be seen above, was created by YouTuber Darth Blender. It uses the audio from the Dark Phoenix trailer with visuals from X-Men: The Animated Series."

IP-Transformative Entrepreneurs or IP Law Infringers and Scofflaws? Observations from Steel City Con 2018

IP-Transformative Entrepreneurs or IP Law Infringers and Scofflaws?

Observations from Steel City Con 2018

Kip Currier: Last weekend at Pittsburgh's Steel City Con 2018, I observed and spoke with a number of sellers/vendors. These vendors, as I see it, primarily fall into 2 different categories, in terms of what they're selling.

Category #1: Unaltered Goods.

Sellers of sold-as-is comic books, action figures, toys, games, autographed celebrity photos, etc. Items whose original form has not been materially altered (transformed) from the time they were created by the original publisher, manufacturer, or company. [Other than perhaps having been previously read (in the case of comic books) or played with (e.g. action figures, toys, and games)].

Examples:

Licensed Negan-carrying "Lucille" Bats from The Walking Dead
James "Kip" Currier (c) 2018

Lost in Space DIY plastic kit
James "Kip" Currier (c) 2018

Rainbow (or Arc-en-ciel, en francais) Batman action figures
(...Curious to know the idea/motivation behind this incarnation of The Caped Crusader!)
James "Kip" Currier (c) 2018

Seller with miscellaneous goods for sale...and 2 Jeannies
James "Kip" Currier (c) 2018

Category #2: Altered Goods (--not to be confused with recently-released Netflix Sci-Fi show Altered Carbon)

Sellers of goods that incorporate, build upon, mashup (combine), transform, and/or some would say appropriate aspects of existing Intellectual Property, such as well-known trademarked logos, designs, characters, devices, etc.

The ongoing issue for consideration-- depending on where you fall on the "fan culture", "transformativeness", "IP infringement" spectrum--is whether you think the folks in Category 2 are:

• Intellectual Property-Transformative Entrepreneurs?
• Intellectual Property Law Infringers and Scofflaws?
• Something else?

Last year I wrote about and included photos of some sellers, who I'd spoken with at Steel City Con 2017:

Some examples of works that I observed being sold at the Con veer closer to (and step over?) the edge of infringement than others that can make stronger arguments for "transformativeness". Cristine Cordero's Heroes and Heels is a good example of the latter. Cristine told me that she uses actual comic book-clipped images to bring one-of-a-kind "custom created comic book shoes" to life...and her customers' feet.

At the 2017 Steel City Con, I spoke with a seller named Jim Radeshak, who was back this year. He runs Feisty Goblin Crafts and make "Handmade Comic Book Art Items" that he sell at Conventions and on Etsy. Radeshak's business card cheekily declares that he is "Cutting up comics to make yours more valuable!" He explained that he cuts out images from comic books and free Previews of comic books. Then affixes those images to ceramic coasters, via a process of lacquer application and "baking":

Coasters made by Jim Radeshak's Feisty Goblin Crafts
James "Kip" Currier (c) 2018

More Feisty Goblin Crafts' Coasters
James "Kip" Currier (c) 2018

I also spoke briefly with Michael Fulton. He bills himself as The Wandmaker and makes "Original Hand-crafted Wands" of all shapes and sizes. The spitting image of Eddie Redmayne's Newt Scamander (J.K. Rowling's literary and cinematic protagonist in 2016's fantasy film Fantastic Beasts and Where to Find Them), the wand-and-magic-suitcase-in-hands would-be wizard dashed from behind his wands-covered vending table to conjure up a photo:

Wandmaker, Michael Fulton, as J.K. Rowling's Newt Scamander
James "Kip" Currier (c) 2018

This clever T-shirt business, called Cleveland Sleeves, "mashes up" brands, such as Star Wars characters with famous sports teams. Like this one that amalgamates the Pittsburgh Pirates baseball team with a Star Wars Stormtrooper mask:

James "Kip" Currier (c) 2018

In this photo, the Cleveland Sleeves salesperson on the left sports a T-shirt that displays Pittsburgh in the recognizable block-y font from the first Superman franchise film series:

Cleveland Sleeves T-shirts and vendors
James "Kip" Currier (c) 2018

This T-shirt that mashes up the Pittsburgh Steelers football theme with a Stormtrooper will be loved by my university-attending nephew--who is a die-hard fan of both franchises:

James "Kip" Currier (c) 2018

In a post about Steel City Con last week, I included this creative Wrestling Art example:
An artist (or artists) has taken iconic comic book covers from, say, Marvel and DC Comics and substituted and/or added in wrestling celebrities for the original comic book characters...Mick Foley standing in for Spider-Man. Becky Lynch swapping out She-Hulk:

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

Some vendors also make bespoke costume apparel and gear. Like this guy, seen talking with a Star Wars fan about special ordering some accessories:

Star Wars-themed bespoke clothing and gear
James "Kip" Currier (c) 2018

Replica "props" from diverse genres (e.g. Spy; Sci-Fi; Fantasy; Horror) are also a visible presence:

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

Other examples of goods for sale:

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

Even clothing for babies and toddlers:

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

And, finally...for that impossible-to-buy-for-person in your life who already has everything...

What about a colorful custom-made crocheted Mermaid tail?

Perfect on a cold night for snuggling--with yourself...

Or for cosplaying Daryl Hannah's Splash mermaid Madison, indulging in a summer seaside swim; albeit a soggy one.

Perhaps Plato had it right that "necessity" really is the "mother of invention".

James "Kip" Currier (c) 2018

Steel City Con 2018, Monroeville, Pennsylvania (Greater Pittsburgh Area), April 13-15, 2018

Kip Currier; Steel City Con 2018

April 14th I attended the Pittsburgh area's Steel City Con--a several-times-a-year gathering for comic book/toy sellers and eclectic entrepreneurs, celebrities, cosplayers, and pop culture enthusiasts of all ages.

James "Kip" Currier (c) 2018

As in previous years, I spoke with some very interesting and creative small business folks, who are using Intellectual Property in novel ways. Like this example, where iconic comic book covers are transformed by adding wrestlers:

James "Kip" Currier (c) 2018

James "Kip" Currier (c) 2018

I'll be posting an upcoming piece shortly that focuses on some of these entrepreneurs.

Cosplayers (i.e. translation: costume-sporting fans) were in abundance (on a much-welcomed warm weather day!), as you can see from my pics:

2 Deadpools in SPF-compliant costumes, basking in 80+ degree F. sunshine.
James "Kip" Currier (c) 2018

Colonel Sanders--after a 5K run
James "Kip" Currier (c) 2018

True Story:

Kip: May I take your photo, Colonel Sanders?

"Colonel Sanders": Yes--if you can name the 11 herbs and spices in my Original Recipe?

Me: (laughing) Uh, Colonel Sanders, I can't name them... because they're protected as one of the world's most famous trade secrets.

Colonel Sanders: (Big grin--while high-fiving me!)

Harper Lee’s Estate Sues Over Broadway Version of ‘Mockingbird’; New York Times, March 14, 2018

Alexandra Alter and Michael Paulson, New York Times; Harper Lee’s Estate Sues Over Broadway Version of ‘Mockingbird’

"The move to assert more control over the play is perhaps a sign of how Ms. Carter views her role as a guardian of Ms. Lee’s legacy. In her final years, Ms. Lee went to court to protect her intellectual property, and sued a museum in her hometown, Monroeville, in 2013, arguing that it had infringed on Ms. Lee’s trademark by selling “Mockingbird” themed T-shirts and trinkets (the suit was settled in 2014).

Mr. Rudin alluded to that lawsuit in a statement that said the “estate has an unfortunate history of litigious behavior and of both filing and being the recipient of numerous lawsuits, and has been the subject of considerable controversy based on the perceptions surrounding its handling of the work of Harper Lee both before and after her death.”"

Entrepreneurialism and IP at Steel City Con; Kip Currier, August 13, 2017

Kip Currier
Entrepreneurialism and IP at Steel City Con 

Steel City Con (a Burgh-based pop culture convention in the vein of San Diego's famed Comic Con) has been running all weekend at the Monroeville Convention Center (13 miles from downtown Pittsburgh) and is finishing up today. I attended Saturday, August 12th (--the biggest "autograph" lines I saw were for Burt Reynolds! And it was cool to get up-close looks at three of the Brady Bunch kids, "Greg", "Bobby", and "Cindy"..."the youngest one in curls".--) and chatted with a number of very creative Western Pennsylvania entrepreneurs, showcasing and selling their self-made wares. In a variety of ways, they're using and working with (some would say infringing upon) Intellectual Property, and, in some cases, transforming Intellectual Property into new works.

Decals are a big seller at Conventions, like this X-Men decal:

Some examples of works that I observed being sold at the Con veer closer to (and step over?) the edge of infringement than others that can make stronger arguments for "transformativeness". Cristine Cordero's Heroes and Heels is a good example of the latter. Cristine told me that she uses actual comic book-clipped images to bring one-of-a-kind "custom created comic book shoes" to life...and her customers' feet.

Some have even been worn at superhero-themed weddings. ("I now pronounce you husband and..Deadpool?")

I asked each vendor with whom I spoke if they had had any requests to "cease and desist", or worse, from the companies that own the IP rights to, say, Star Wars, Harry Potter, the Suicide Squad, and the Avengers. Everyone shook their heads or said that they hadn't experienced anything like that. A few told me that any IP rights enforcement-type issues that they'd seen at conventions were relegated to films and videos, more associated with digital piracy. One seller told me he hadn't ever seen anyone roaming around the Cons enforcing IP rights. (As an IP instructor, I contrasted that with copyright enforcement examples I'm well aware of, involving licensing "sheriffs" on the lookout for copyright scofflaw musicians and cover bands. See here and here.)

I saw some really ingenious mashups of popular TV shows and characters. This T-Shirt combines the high mortality rate trope of the Red-Shirted security officers in the orginal Star Trek series (--if Star Trek were a chess game, the Red Shirts would be your pawns), with the series name of a popular zombie apocalypse TV show you may have heard of:

"Where do you come up with these ideas", I asked their maker?
"In the middle of the night they come to me. About 4 am", she chuckled.

Another seller with GoodsandEvil.com told me that Pittsburgh-born Greg Nicotero, the special effects guru extraordinaire on The Walking Dead, had just bought up a bunch of his clever zombie-themed shirts to take back to the crew. "Pretty cool to think that these shirts may be worn by people on the set", he understandably beamed. I told him I really liked the t-shirt below, a creative homage to the Western Pennsylvania-referenced places in 1968's (copyright-free!) Night of the Living Dead film and its cinematic zombie progeny, made by Pittsburgh's own George Romero, recently deceased. I snapped up one for myself, and one for my nephew, who's a big fan of The Walking Dead--before Greg Nicotero could circle back and clean them out (for We Are Negan? Rick's Gang? Shiva???).

My brother (the above-mentioned nephew's father) has been a big fan of Jack Nicholson's iconic "Here's Johnny" scene in Stephen King's The Shining, featured on another local entrepreneur's horror-themed ceramics. Perfect for that next office cocktail party (wasabi peas, anyone?):

Bringing it back to myself...I've always loved the scene in The Fellowship of the Ring where Ian McKellen-cum-Gandalf the Wizard stares down a fiery Balrog. With just his staff and a full-throated "You Shall "Not Pass". Now I can own Gandalf's "red line" on a yellow metal sign...and daydream about where I'd like to place it.

And for any of you Games of Thrones fans out there (or, if you're not a GOT devotee but are looking for a truly unique stocking stuffer for later this year)...how about custom-made Chain Mail for your canine BFF? Not that even Valyrian chain mail would do much good, should you be unlucky enough to find a Drogon-driving, "Dracarys"-dripping Daenerys Targaryen bearing down on you on some windswept plain. 

(House Lannister, House Stark, or House Targaryen?)

Cosplayers were, unsurprisingly, in abundance at Steel City Con too. Leias, Obi-Wans, Jokers, Harley Quinns...R2D2

And, yes, where you have cosplayers, you're gonna have that occasional dreaded cosplayer wardrobe malfunction. (Holy Suspenders, Batman...your utility belt's busted!)

Cue drumroll and Enter the enterprising folks from Any-Kind-A-Wear, who offered a Cosplay Repair Service:

A bit of duct tape...a well-placed safety pin and a dab-dab from a hot glue gun...maybe a spit and polish...and you're lookin' great and ready to save the world again.

...Or just hang out with your SuperFriends at your friendly neighborhood Con.

Can You Change Two Words To A Song And Claim A New Copyright?; Above The Law, August 10, 2017

Krista L. Cox, Above The Law; 

Can You Change Two Words To A Song And Claim A New Copyright?

"In order to be copyrightable as a derivative work, the new work must “add new original copyrightable authorship.” We will (shall?) see whether these small changes were big enough to warrant copyright protection. And if a court indeed finds that it is, well, I guess that means it’s time for me to start marketing “Ringing Bells.”"

THE STAR WARS VIDEO THAT BAFFLED YOUTUBE'S COPYRIGHT COPS; Wired, August 2, 2017

Jeremy Hsu, Wired; THE STAR WARS VIDEO THAT BAFFLED YOUTUBE'S COPYRIGHT COPS

"Still, the Auralnauts say they have few options to fight what they view as unfair claims on their content. Koonce suggested possible Content ID improvements that could prevent the same false claims from being repeatedly filed against the same video by different claimants. “People need to protect their IP, but don’t give them all the power," he says.

A smarter profit-sharing system would differentiate better between, say, a video of Queen performing “Bohemian Rhapsody” or the same song playing in the background of someone's wedding video. “What is needed is a more nuanced approach to how stuff gets monetized,” says Robert Lyons, a former digital media executive who is now a visiting lecturer at Northeastern University in Boston.

In any case, Lyons suggests that the Auralnauts video has a very good chance of being protected under fair use legal doctrine—the legal concept that allows for music and video parodies, among other exceptions to copyright infringement. “I think that a mere five seconds of the title’s music in a work that clearly is transformative and [that] poses no threat to the commercial potential of the original work would have a very strong fair use defense,” Lyons says."